Caparra confirmatoria: the deposit when buying in Italy

The rule in article 1385

When a party hands the other a sum of money (or other fungible goods) as caparra at the moment of making the contract, three outcomes follow, in the words of the article:

1. Performance: the deposit must be returned or credited against the price due.
2. The payer defaults: the other party may withdraw from the contract and keep the deposit.
3. The recipient defaults: the payer may withdraw and demand double the deposit.

The third paragraph keeps the usual remedies alive: a party who is not at fault may prefer to demand performance or termination of the contract instead, and then damages follow the general rules. In other words, the deposit is a pre-agreed outcome that the innocent party may choose, not a ceiling on what it can claim.

A worked calculation using the article’s mechanism, not a quote: with a €20,000 deposit, a buyer who defaults loses €20,000; a seller who defaults must return €40,000 (the €20,000 received plus the same amount again) if the buyer chooses to withdraw.

Caparra penitenziale: when the deposit buys a right to withdraw

Article 1386 covers a different animal. If the contract itself stipulates a right of withdrawal for one or both parties, the deposit serves only as the price of withdrawing: the party who withdraws loses the deposit given or returns double the one received. Because the effect differs, the label on the form matters. A clause that says “caparra” without saying whether you may walk away for the price of the deposit invites a dispute. Ask the notary or your adviser which of the two you are signing.

Caparra versus acconto (advance on the price)

An acconto is an anticipated part of the price; it is not a guarantee of performance. The Agenzia delle Entrate treats them differently for VAT: where the sale is subject to VAT, an advance is invoiced with VAT and the preliminary then pays a fixed €200 for the advance plus €200 for the contract itself, while a caparra confirmatoria is not subject to VAT because it is not payment for goods or services. Where the sale is not subject to VAT, both attract the same proportional registration tax at the preliminary. If your contract says “acconto” and “caparra” interchangeably, ask for the contract to state which sum has which function.

Tax on the deposit

The Agenzia delle Entrate states that when a preliminary contract provides for deposits or advances not subject to VAT, a proportional registration tax is due. For contracts signed from 1 January 2025 it is 0.5% of those sums, or the tax applicable to the final contract if that is lower; the tax paid is credited against the principal tax at the deed. Up to 31 December 2024, advances bore 3% and deposits 0.5%. Calculation, not a quote: 0.5% of a €15,000 deposit = €75, plus the fixed €200 of the preliminary itself. Where the sale is subject to VAT, the deposit still pays the proportional 0.5% tax, capped by the tax due on the final contract. At the deed the Agenzia delle Entrate notes the sum actually payable may be lower thanks to the tax already paid on the deposit.

The deposit at the offer stage

Many agency forms ask for a cheque with the purchase proposal. The notariato says the proposal is accompanied by a sum “by way of deposit” and that the proposal binds only the signer until the seller accepts, after which it becomes a preliminary contract. Until then, the rules for who may keep the money depend on the wording of the form, and the sources read do not settle what happens if the seller lets the offer lapse. Read the proposal guide and ask for the return conditions in writing.

Homes still to be built

For a preliminary contract on a property to be built, D.Lgs. 122/2005 (art. 6) requires the contract to specify the amount of any deposit, and payments must be made by bank transfer or deposit into accounts held in the seller’s name, or other means giving certain proof of payment. The seller must also provide the surety required by article 2 for the sums collected. See the preliminary contract guide.

What the sources do not give

No percentage for the deposit appears in the texts read: it is agreed between the parties. The articles say nothing about a court reducing a deposit that is out of proportion, and Payotte did not read a court decision on it, so ask a lawyer before relying on a large figure. Payotte does not state a “usual” percentage, because none is set by an official source.

Which professional to consult

A notary can draft the clause and explain what each version means. A real estate agent usually holds the standard form, but its wording favours no one in particular, so read it. A lawyer can advise on a dispute.